Seguritan US Immigration Articles

Prepare for H-1B Filing Now

The United States Citizenship and Immigration Services (USCIS) will once again open its doors to H-1B cap applications and considering that the applications for last fiscal year was 233,000, it is safe to assume that it will exceed this figure this year.

Ultimately, the applications are expected to exceed the quota which is at 65,000 for foreign workers in specialty occupations and 20,000 for graduates with advanced degrees from the US. And if the H-1B petitions go beyond the cap, the USCIS will conduct a lottery to determine which petitions will make it to the cap.

With that in mind, it is best to be prepared early to avoid delays. US companies and employers intending to hire foreign workers must start working on all the paper works for the H-1B petitions now to be ready for the April 1 filing.

For instance, the approval and certification of the labor condition application (LCA) with the Department of Labor (DOL) in itself takes about seven business days and that should be considered in the timeframe. In fact, it is recommended that LCAs be prepared and submitted to the DOL as early as February.

It is also best to be ready with all necessary documentations because the USCIS will issue a Request For Evidence (RFE) if your petition is not sufficient to grant said request. When RFEs are issued, this can delay the approval of the petition sometimes way beyond the October 1 start day.

RFEs are often about the position open for H-1B workers, the qualifications and degree held by said worker and whether that matches with what is desired by the company. Sometimes it also looks into whether the candidate’s education and/or experience are equivalent to a US bachelor’s degree.

Petitions not selected during the lottery will be rejected. The petition and the fee will be returned except in cases of multiple filings. Thus, it is advisable not to file multiple petitions for one H-1B worker because that can result in the denial of all petitions and the fees paid will not be refunded. Related employers such as parent and subsidiary companies, however, are not precluded from filing petitions on behalf of the same H-1B so long as it is for different positions and based on legitimate needs of the employers.

H-1B petitions may also be accompanied with a request for premium processing but this will not increase the probability of getting an H-1B number. It will, however, be issued receipts faster than those under regular processing and in case the USCIS conducts a lottery, petitions filed under premium processing will know the results more quickly.

In preparing the H-1B petition, employers must indicate their true intention regarding the work site of the H-1B worker. If the H-1B worker will not work at their headquarters but in a client worksite, this fact must be stated in the petition. Criminal charges have been filed by the Department of Homeland Security (DHS) against employers for stating anything other than the truth.

An employer who intends to assign the H-1B worker in another work site on October 1 should state it in the petition and the Labor Condition Application (LCA) even if the employer is still unable to specify the worksite at this time.

If the H-1B petition comes with a request for change of status, the petition must be accompanied with documentary evidence of the nonimmigrant status of the beneficiary through September 30, 2016.

Work authorization for F-1 students under Optional Practical Training (OPT) who have timely filed an H-1B petition and requested for change of status shall be extended until September 30 when the petition is approved or while the petition is pending. Students who completed their OPT but are within valid grace period will receive automatic extension of their authorized stay. However, they will not be allowed to work during the period.

If you have everything and all necessary documentations, it is best to file the H-1B petition on March 31 to be received at the USCIS by overnight mail delivery on April 1.

Immigrant Visa Waiting List is Long

123,524 applicants were added last fiscal year to the immigrant visa waiting list in the various preference categories subject to numerical limits.

A report from the National Visa Center (NVC) and submitted to the Department of State shows that as of November 1, 2015, there were 4,455,274 family-based applicants, an increase of 123,524 or 2.9% from last year. The number of employment-based visa applicants was 100,747 up by 9,837 applicants from last year.

The Philippines placed second over-all, with 417,511 registrants. The other countries that round up the top five in terms of number of registrants are: Mexico- 1,344,429; India- 344,208; Vietnam- 282,375; and China- 260,265.

These numbers include not only the principal applicants or petition beneficiaries but also their spouses and children entitled to derivative status. However, they do not include spouses, unmarried children under 21 years of age, and parents of US citizens who are not subject to the numerical limitations.

The figures do not also include the significant number of applicants for adjustment of status. Also excluded are those who failed to respond within one year to the visa application instruction letter sent by the National Visa Center notifying them of visa availability. In such case, the petition is considered inactive and not counted in the waiting list totals.

For fiscal year 2016, or from October 1, 2016 through September 30, 2017, the total number of visas to be issued is 226,000 in family-based preferences and 140,000 for employment-based preferences. The total per-country limit will be 25, 620, which translates to decades-long wait times for applicants in certain categories from countries such as Mexico, India, Vietnam, China and the Philippines.

The numbers of registrants for the family-based preferences (F) are: F1 (adult unmarried sons and daughters of US citizens)- 322,786; F2A (spouses and children of permanent residents)- 276,022; F2B (adult sons and daughters of permanent residents)- 480755; F3 (married sons and daughters of US citizens)- 825,991; and F4 (brothers and sisters of US citizens)- 2,549,718.

The Philippines has the second highest number of family preference registrants with 388,214. The per-country limit on the annual number of family preference visas for FY 2016 is 15,280.

Mexico ranked first in all family-based preferences. The Philippines ranked second in F2B and F3 categories; fourth in the F2A category, and sixth in the F4 category. More cases may be added to the F1 waiting list because of the automatic conversion pending 2B cases into F1 cases upon the naturalization of the petitioner, but this can be avoided by availing of the opt-out provision under the Child Support Protection Act. By opting to remain as an F2B case, a longer wait time under the F1 category is avoided.

For employment-based preferences (EB), the breakdown of registrants is as follows: EB1 workers with extraordinary ability, outstanding professors and researchers, and multinational managers and executives)- 3,474; EB2 (advanced degree professionals and aliens of exceptional ability)- 11,440; EB3 (skilled workers and professionals)- 61,584; EB3 (other workers)- 6,208; EB4 (special immigrants and religious workers)- 379; and EB5 (employment creation)- 17,662.

The Philippines ranked first in the EB3 (skilled workers) category, fourth in the EB2 and third in the EB3 (other workers) categories. Registrants from the Philippines comprise 30% of the total for employment-based preferences at 29,297, of which 96% fall under the EB3 (skilled workers) category for the Philippines. For FY 2016, the per-country limit is only 9,825.




The Long Wait for Employment-Based Green Card

Many people know that the process of becoming a U.S. immigrant through employment begins with the filing of a labor certification application or an immigrant visa petition which assigns a “priority date” to the foreign national. This priority date determines the foreign national’s place in the line for an immigrant visa.

But many people also make the mistake of underestimating the length of time they must wait before a visa number becomes available to them. For example, if an EB3 preference petition is filed for a professional today, he might assume that, based on the latest visa bulletin which shows an August 1, 2007 cut-off date for the Philippines, his priority date will become current in about eight years.

This is not necessarily true. To understand how long one must wait before his/her priority date is reached, it is useful to have an idea of how immigrant visa numbers are allocated and what the actual demand under a visa category is.

The monthly cut-off date is determined by the Visa Office (VO) of the Department of State (DOS). The VO collects information from overseas consular posts as well as the USCIS with regard to immigrant visa requests. It calculates visa number usage and compares the demand with the allotment, separating it by foreign state chargeability and preference.

If the demand does not exceed the allotment, the category is current and no cut-off date is needed. Otherwise, the category is considered oversubscribed and DOS sets a cut-off date which is the priority date of the first applicant who will not receive a visa number.

Employment-based (EB) immigration operates on a preference system which distributes the limited number of immigrant visa numbers available each year into five general categories. These are: EB1 for priority workers; EB2 for advance degree processionals and aliens of exceptional ability; EB3 for skilled workers, professionals and lesser skilled “other workers”; EB4 for special immigrants, including religious workers; and EB5 for investors. The principal worker’s spouse and children are counted against the available number of immigrant visas.

The law sets a worldwide limit of 140,000 EB visas per fiscal year. The EB1, EB2 and EB3 categories each get 28.6% of the total or 40,040 visas per category. The EB4 and EB5 categories each get 7.1% or 9,940 visas.

However, there is also a per-country limitation in the number of visas available per EB category which is 7% of the total annual limit. This means that only 2,803 visas for EB1 through EB3 and about 700 visas for EB4 and EB5 may be initially allocated to any single nationality group per year. Quite obviously, the visa allocation system works to the disadvantage of populous countries such as India, China and the Philippines.

The complex visa allocation system also involves several mechanisms that reallocate unused visa numbers. Unused visa numbers in EB4 and EB5 “fall up” to EB1. Unused numbers “fall down” from EB1 to EB2 to EB3. If an oversubscribed country has a relatively small demand for family-based visas, the excess visa numbers “fall across” to the EB preferences, as long as the total number use is still within the 7% limit for the country. This also works the other way around, i.e. from employment based to family based. However, the Philippines does not benefit from this type of spillover because it is oversubscribed in both employment and family preferences.

Green Card Is Possible Despite Petitioner’s Death

Is it still possible for the beneficiary to get a green card even if petitioner dies? Before Section 204(l) of Immigration and Nationality Act was enacted by Congress, the death of the petitioner automatically revoked the petition save for two instances. One was when the beneficiary was the widow or widower of a US citizen who might benefit as the surviving spouse only if they were married for at least two years or the so-called “Widow Penalty” and two, through reinstatement of an approved I-130 petition on humanitarian grounds.

With Section 204(l), those eligible for survivor immigration benefits expanded to include the following: the beneficiary of a pending or approved immediate relative visa petition; the beneficiary of a pending or approved family-based visa petition, including both the principal beneficiary and any derivative beneficiaries; any derivative beneficiary of a pending or approved employment-based visa petition; the beneficiary of a pending or approved Form I-730 or Refugee/Asylee Relative Petition; an alien admitted as a derivative “T” or “U” nonimmigrant; or a derivative asylee.

Also, the “widow penalty” has been eliminated allowing widows of U.S. citizens and their children to self-petition even if the marriage was less than two years when the petitioner died.

In order to benefit from Section 204(l), the surviving relative must be residing in the U.S. at the time the petitioner or qualifying relative died and must continue to reside in the U.S. Residence for this purpose means the “principal actual dwelling place in fact, without regard to intent.” For petitions with multiple beneficiaries, it is not required that all beneficiaries meet the residence requirement. If one beneficiary meets the residence requirement, all other beneficiaries, such as the spouse and minor children of the principal beneficiary, may benefit from this section.

Section 204(l) seeks to place the beneficiary in the same position but for the death of the petitioner. The USCIS will adjudicate the petition and other related applications as if the petitioner or qualifying relative did not die. Thus, if the qualifying beneficiary is eligible under Section 204(l), the USCIS will consider applications for waiver of inadmissibility due to fraud or criminal conviction, for instance. The beneficiary must establish extreme hardship suffered by the qualifying relative if he were alive and must prove that he deserves the favorable exercise of discretion.

If an affidavit of support is required, a Form I-864 of a substitute sponsor must be submitted. The substitute sponsor must be a U.S. citizen or lawful permanent resident, at least 18 years old and must be related to the qualifying beneficiary. The substitute sponsor may be the applicant’s spouse, parent, mother-in-law, father-in-law, sibling, child, son, daughter, son-in-law, daughter-in-law, sister-in-law, brother-in-law, grandparent, grandchild or legal guardian.

If the beneficiary was residing outside the U.S. when the petitioner died, Section 204(l) will not apply so he has to request for a humanitarian reinstatement of the revoked family-based petition. Only approved petitions may be reinstated and not petitions where the petitioner died before the approval. 

The following factors are considered in evaluating a humanitarian request: disruption of an established family unit; hardship to U.S. citizens or lawful permanent residents; if the beneficiary is elderly or in poor health; if the beneficiary has had lengthy residence in the United States; if the beneficiary has no home to go to; undue delay by the DHS or consular officer in processing the petition and visa; and if the beneficiary has strong family ties in the United States.

Adjustment of Status of 245(i) Derivative Beneficiary

An alien who entered the U.S. without inspection, worked without authorization or overstayed a temporary visa is generally not eligible to adjust status to that of a lawful permanent resident. Congress passed a law in 1994 which allowed aliens, who were otherwise ineligible, to adjust their status in the United States.

After Section 245(i) expired, Congress extended it and allowed an alien to adjust status as long as he was the beneficiary of a labor certification application or immigrant visa petition filed on or before April 30, 2001. If an alien is the beneficiary of a qualifying petition or application and has paid the $1,000 penalty fee, his eligibility to adjust status is preserved.

At the same time, if the qualifying petition or labor certification was filed after January 14, 1998 the alien must be physically present in the U.S. as of December 21, 2000 in order to be eligible for Section 245(i) benefits.

The law allows “grandfathering” meaning the alien continues to benefit under 245(i) until he adjusts status and even on a basis other than the qualifying immigrant visa petition or labor certification.

Two types of aliens can be grandfathered under 245(i). The first refers to principal grandfathered aliens or the beneficiaries of visa petitions or labor certifications filed before April 30, 2001 if the petition or application was properly filed and approvable when filed. The second category pertains to spouses and children of principal grandfathered aliens, also called derivative grandfathered aliens.

To illustrate this, suppose that a nursing aide named Ellen entered the U.S. in 1995 but overstayed her tourist visa and has been living in the U.S. ever since. Suppose that she was the beneficiary of a labor certification application filed a few weeks before April 30, 2001 by her employer, a nursing home which unfortunately went out of business a few years later.

In 2006, let’s say another employer, this time a hospital, files another labor certification application and later an immigrant visa petition for Ellen. Can she adjust status? Because she is “grandfathered” under the old law, when her priority date is reached she can file for adjustment of status, notwithstanding her unlawful presence of more than 10 years.

In this example, Ellen is the principal grandfathered alien. Since the qualifying labor certification was filed after January 14, 1998 but before April 30, 2001, she must show when she finally applies for adjustment of status on the basis of the hospital’s visa petition that she was physically present in the U.S. on December 21, 2000.

If Ellen has a husband and daughter, they can be derivative grandfathered aliens who can apply for permanent resident status without the need of showing the required physical presence in the U.S. because Ellen meets that requirement.

But what if Ellen’s husband, a derivative grandfathered alien, is the beneficiary of an approved employment-based visa petition and his priority date was reached earlier, but he could not show physical presence in the U.S. as of December 21, 2000. Can he qualify for a 245(i) adjustment?

The Board of Immigration Appeals’ ruling in Matter of Svetislav Ilic tells us that he can. In that case, the respondent’s wife was the beneficiary of a family-based petition filed by her U.S. citizen sister. The respondent entered the U.S. without inspection in 2005 but he was the beneficiary of an approved I-140 petition with a priority date of April 22, 2004.

Removal proceedings were brought against him and he sought adjustment of status under Section 245(i) as a relief. The government opposed his application and said that since he is not adjusting on the basis of his wife’s family-based petition, he has become a “principal adjustment applicant” and he needs to demonstrate that he was in the U.S. as of December 21, 2000.

The BIA held that if the respondent’s wife meets the physical presence requirement, then she is grandfathered for 245(i) eligibility, and so is respondent even if he is adjusting on the basis of his employer’s I-140 petition.

Supreme Court to Rule on CSPA Priority Date Retention

The U.S. Supreme Court heard oral arguments in the case of Mayorkas v. De Osorio last December 10. The Court’s decision is expected by June 2014 and will have far-reaching implications to derivative beneficiaries of family-based preference petitions.

Under immigration law, parents who are the principal beneficiaries of a family based preference petition can include their unmarried children under 21 as derivative beneficiaries. Family based preference petitions fall under four categories, namely, F1 (unmarried sons and daughters of U.S. citizens), F2A (spouses and minor children of lawful permanent residents (LPRs), F2B (unmarried sons and daughters of LPRs), F3 (married sons and daughters of U.S. citizens) and F4 (brothers and sisters of U.S. citizens).

There is a waiting period for a visa to become available because of the problem on visa backlog. The waiting period differs depending on the category and the country of chargeability; it can be decades for some countries such as Mexico and the Philippines. For example, the F4 category for the Philippines has a current priority date of July 1, 1990. Once a visa becomes available, the child who turns 21 years old “age-out” and can no longer join the parents as derivative beneficiaries. The Child Status Protection Act (CSPA) was enacted in 2002 to address this problem.

Under the CSPA, when a visa number becomes available, the amount of time the petition was pending before the USCIS is deducted from the child’s actual age. If the adjusted age of the child is under 21, the child may join the parents as derivative beneficiary. If not, the petition shall “automatically be converted to the appropriate category and the alien shall retain the original priority date issued upon receipt of the original petition.”

This way the aged-out children won’t have to go to the back of the line for a new family-based preference category. They will be credited for the lengthy period they already waited with their parents.

The case of Mayorkas v. De Osorio involves Cuellar de Osorio who was the primary beneficiary of an F3 petition of her U.S. citizen mother. Her son was thirteen years old when the petition was filed in May 1998. When a visa became available in November 2005, her son aged out and became ineligible for an immigrant visa. She filed for an F2B petition for her son in 2006 and requested that her son’s 1998 priority be retained. The USCIS denied her request.

She appealed to the Ninth District Court which decided the case in her favor. The court ruled that the CSPA provides for the automatic conversion of the petition and priority date retention of all derivative beneficiaries of family based preference petitions. The Government appealed the decision to the U.S. Supreme Court.

The Government contends that the language of the CSPA law is ambiguous and the decision of the Board of Immigration Appeals (BIA) in Matter of Wang 2009 should be given deference by the court. In that case, the BIA ruled that the automatic conversion of the petition to F2B and the retention of the priority date only applies to F2A petitions.

A bipartisan coalition of current and former U.S. Senators filed a legal brief with the Supreme Court last November 4 and explained that the language of the CSPA is clear; it benefits all derivative beneficiaries of family based preference petitions. It further stated that “Only through the broad coverage of all derivative beneficiaries could the CSPA effectively protect family unity and award credit for the years that families had waited.” It went on to conclude that “Congress has enacted a law that is clear on its face; the agency must act to faithfully carry it out.”

Once the Supreme Court resolves this case, it will finally put an end to the long-standing legal saga involving the CSPA provision allowing age-out children to retain their original priority dates.

Parole for Military Family Members

The USCIS recently issued a policy memorandum clarifying the grant of parole to families of military members and veterans who are already in the United States and who entered without inspection. This allows them to remain in the country and apply for green cards, if eligible. The policy also clarifies that adjustment of status may be granted to aliens paroled into the US.

Parole that is typically granted by the Secretary of Homeland Security for “urgent humanitarian reasons or significant public benefit” is used to permit an alien outside the United States to enter the country. The policy clarified that aliens who are physically present in the US but who entered without inspection or admission may also be granted parole. This is called “parole in place.”

Under the current law, an individual cannot adjust his status even if he is the spouse, parent or child of a U.S. citizen if he entered the U.S. without admission or parole. For him to get a green card, he has to travel abroad to a U.S. consulate. However, once he leaves the U.S. he will be subject to the 3 year/10 year inadmissibility bar. If he is granted parole he does not have to depart and may adjust status in the U.S.

The new policy was issued to address concerns that the members of the military could face stress and anxiety because of the immigration status of their family members. This has the potential effect of adversely affecting military preparedness.

Many of those serving in the military are foreign-born. Since 2002 over 92,700 have become U.S. citizens. Data from the Department of Defense in 2011 showed that Mexico (12 percent) and the Philippines (10 percent) were the leading countries of origin for immigrants in the military.

Eligible family members specified in the policy memorandum include the spouse, child or parent of an Active Duty member of the U.S. Armed Forces or the Selected Reserve of the Ready Reserve or an individual who previously served in U.S. Armed Forces or the Selected Reserve of the Ready Reserve which includes the National Guard.

The Secretary’s authority to grant parole is discretionary. However, the memorandum emphasized that one of the factors which weigh heavily in favor of parole in place is when the applicant is a spouse, child or parent of an Active Duty member or an individual who previously served in the U.S. Armed Forces or the Selected Reserve of the Ready Reserve.

If the applicant has no criminal convictions and absent other serious adverse factors, parole in place would generally be granted in the exercise of discretion. Parole is granted in one-year increments and request for extension may be granted, if appropriate.

Request for parole is made on Form I-131 and is filed with the director of the USCIS office with jurisdiction over the alien’s place of residence. Evidence of family relationship as well as evidence of the alien’s family member is an Active Duty member or an individual who previously served in the U.S. Armed Forces or the Selected Reserve of the Ready Reserve must be submitted with the application.

When parole is granted, the two inadmissibility grounds under the immigration law are eliminated. The first inadmissibility ground relates to an alien who is “present in the United States without being admitted or paroled,” or those who already entered the US without inspection. The second inadmissibility ground relates to the alien “who arrives in the United States at any time or place other than as designated by the [Secretary of the Homeland Security].” This refers to aliens who are in the process of entering the US without inspection.

An applicant for adjustment of status must comply with the other requirements such as maintenance of status if he is not an immediate relative or Section 245(k) does not apply. He also must satisfy all the other grounds of inadmissibility.

EB-3 Cut-off Dates Advance in December

The December 2013 Visa Bulletin shows that the worldwide employment-based third preference (EB-3) cut-off date will advance by one year from October 1, 2010 in November to October 1, 2011. The Philippines third preference cut-off date will move by three weeks to January 8, 2007.

India’s employment-based second preference will retrogress from June 15, 2008 to November 15, 2004 while its third preference will move back from September 23, 2003 to September 1, 2003. This is the result of the dramatic increase in applicant’s demand for visa numbers in the past few months.

The employment-based second preference (EB-2) will remain current for all countries except China and India. All the other employment preferences will remain current for all countries.

The family-based preferences (F-1 to F-4) will move slowly. The worldwide preference cut-off dates are as follows: F-1 – November 15, 2006; F-2A – September 8, 2013; F-2B – May 1, 2006; F-3 – March 8, 2003 and F-4 – September 8, 2001.

The Philippines cut-off dates are: F-1 – July 1, 2001; F-2A – September 8, 2013; F-2B – March 22, 2003; F-3 – January 22, 1993 and F-4 – June 1, 1990.

Because of the annual numerical limitation of visa numbers, cut-off dates are established for oversubscribed categories. If an applicant’s priority date is before the cut-off date stated in the monthly visa bulletin, a visa number is immediately available. If the priority date comes on or after the cut-off date, the applicant needs to wait until the priority date becomes current.

The family-based 1st preference category (F-1) refers to unmarried sons and daughters of U.S. citizens, while the F-2A preference refers to spouses and children (less than 21 years old) of permanent residents.

The F-2B preference category refers to unmarried sons and daughters (21 years or older) of lawful permanent residents. The F-3 preference refers to married sons and daughters of U.S. citizens. The F-4 preference pertains to brothers and sisters of adult U.S. citizens.

Beneficiaries of employment-based and family-based preferences who have priority dates earlier than the aforementioned cut-off dates and are currently in the U.S., must file their adjustment application in order to get certain interim immigration benefits such as employment authorization and travel permit. Those with pending adjustment applications will be allowed to remain in the U.S. and work here until the adjudication of their adjustment applications.

Eligible to file for adjustment of status are those lawfully present in the United States or those who are beneficiaries under Section 245(i) of the Immigration and Nationality Act. To be covered under Section 245(i), an alien must be the beneficiary of an immigrant visa petition or labor certification properly filed on or before April 30, 2001. If the visa petition or labor certification was filed after January 14, 1998, the alien must prove that he/she was in the U.S. on December 21, 2000.

Among the documents required to file for adjustment of status, in addition to Form I-485 and related forms, are the applicant’s photographs, medical examination report, affidavit of support, copy of passport and I-94, copy of birth certificate, and if applicable, copy of the applicant’s marriage certificate and official proof of termination of any prior marriage.

Adjustment of Status for Children of Fiancé(e) Visa Holders

The K-1 visa, also known as fiancée visa, allows a U.S. citizen to bring a foreign national fiancée into the United States. In order for the fiancée to be eligible to adjust status to permanent residence, they must marry within 90 days of the fiancée’s arrival in the U.S.

The fiancé(e)’s “minor child” may also enter the U.S. on a K-2 visa and apply for permanent residence just like the fiancé(e) parent. If the marriage does not occur within the 90-day period, the fiancé(e) and the derivative child must depart the U.S.

What event fixes the derivative child’s age in order to find out if he or she is eligible for a green card? And what age should it be – 18 or 21? Until recently, there have been conflicting views on this issue.

In a case decided by the Board of Immigration Appeals, it was held that as long as the K-2 derivative child entered the U.S. before reaching age 21, he or she is eligible to adjust status.

That case was about Hieu Trung Le, the son of a Vietnamese woman who entered the U.S. on a fiancé(e) visa. Hieu Trung entered the U.S. at the age of 19 as an alien derivative child. His mother married her U.S. citizen fiancé immediately after arriving in the U.S.

About two months later, the mother and son applied for adjustment of status. Although the mother was approved, Hieu Trung was not because, according to the USCIS, he could not qualify as a stepchild of the fiancé petitioner. Under the law, in order to be a “stepchild” the marriage of the parent must have occurred before the child reaches the age of 18.

Hieu Trung was placed in removal proceedings. By that time, he had reached 21 years of age. He renewed his adjustment application before the judge as a relief in immigration court but the judge denied it, but for a different reason.

The judge said that the respondent was eligible for adjustment when he applied to the USCIS because he was then under 21 years old. However, since he was already over 21 years old, he was denied adjustment by the judge.

On appeal, the BIA rejected the reasoning of both the USCIS and the immigration judge. It found that a K-2 derivative child’s eligibility to adjust status is determined at the time of admission to the U.S. with the K-2 visa, and as long as the bona fide marriage between the K-2 child’s parent and the U.S. citizen occurs within the 90-day period.

The court said that the term “minor child” for whom K-2 derivative status is available means a “child” or an unmarried person under 21 years of age.

It also held that a fiancé(e) derivative child need not qualify as a “stepchild” of the U.S. citizen petitioner as long as he was a “child” of the fiancé(e) parent, i.e. under 21 years and unmarried.

Since Hieu Trung was 19 years old when he was admitted to the U.S. on his K-2 visa, the BIA said that he appears to be eligible for adjustment of status and therefore sent the case back to the immigration judge for further action.

This decision is beneficial to the children of foreign fiancé(e)s who lost the opportunity to become permanent residents because they had reached their 18th birthday before K-1/K-2 visa processing, which sometimes takes a year or more, was completed.

This also means that their eligibility for a green card will not be affected by government delay. It is unfair for these children to lose the chance to become lawful permanent residents and be separated from their family in the U.S. simply because they “aged out” before the USCIS adjudicated their adjustment applications.

Fight for Immigration Reform Gains Momentum

Tens of thousands of people joined the demonstrations and rallies held in 150 sites nationwide last October 5 to pressure Congress to pass the immigration reform bill. Advocates dubbed the day, the “National Day of Immigrant Dignity and Respect.”

The protests took place in over 40 states. In the State of California alone, demonstrations were held in 21 cities. The larger rallies took place in Los Angeles, San Diego and Boston. In New York, the march started in Cadman Plaza in Brooklyn and crossed the Brooklyn Bridge. Many of the rallies were conducted before the offices of House Republican lawmakers.

Part of the “major show of force” was the concert and march for immigration reform held on October 8 where thousands of people gathered at the National Mall in Washington, D.C. Multi-Grammy award winner, Los Tigres del Norte and artist Lila Downs performed during the concert. More than 150 protesters, including 8 House members, were arrested for civil disobedience.

Immigrant advocates remain hopeful that immigration reform will pass as House Democrats initiated measures to put pressure on the Republican majority. On October 2, Minority leader Representative Nancy Pelosi of California introduced their own version of a comprehensive immigration reform bill which mirrors that of the Senate-approved bill on major points. Pelosi said that there were enough Democrats and Republicans in the House to pass the bill.

The House Democrats’ immigration plan includes a path to citizenship for the undocumented; however, it does not include the border security measures which helped win over many conservative Republicans in the Senate. In place of the proposed border security measures, it would require the Department of Homeland Security to map out a plan to ensure the arrest of 90% of illegal crossers across the entire southern border within 5 years.

Although at present, no Republican member is a sponsor of the bill, this still comes as good news to advocates especially since the bipartisan House group’s efforts to come up with the bill failed last month. Representative Pelosi challenged Speaker John Boehner (R-Ohio) to put the immigration bill for a vote on the floor this year.

Several House Republican leaders have indicated that “passing comprehensive immigration reform remains a top Republican priority.” Representative Cathy McMorris Rogers who chairs the House Republican Conference said despite the government shutdown, her party is still committed to “rewrite the nation’s immigration laws.”

Meantime, a number of smaller immigration bills are expected to move onto the House floor in late October or early November. The bills already approved in the Judiciary Committee level involve enforcement and visas for highly skilled workers.

While Congress continues to refuse to act on the immigration reform bill, California has adopted a number of bills expanding immigrant rights. Governor Jerry Brown recently signed into law the Trust Act which restricts federal agents from detaining undocumented immigrants who are non-criminals or minor offenders. He also signed the bill allowing qualified undocumented immigrants to become licensed attorneys as well as the bill allowing the issuance of driver’s license to the undocumented.

With unceasing and intensified efforts, nationwide campaigns, and growing support even within the Republican party, advocates are hopeful that the comprehensive immigration reform bill will be passed by the end of the year.

Scroll To Top